Dodson v. Lomax

• Decision Date: 31 January 1893
• Citation: 21 S.W. 25,113 Mo. 555
• Parties: DODSON v. LOMAX.
• Court: Missouri Supreme Court

21 S.W. 25

113 Mo. 555

DODSON v. LOMAX.

Supreme Court of Missouri, Division No. 2.

January 31, 1893.

REFORMATION OF SHERIFF'S DEED — PARTIES.

Where a sheriff, by mistake, inserts a wrong description in his deed for the land sold by him under mortgage foreclosure, he has an interest, both as an individual and as trustee, to prevent an injury to himself and the grantor in the mortgage because of the mistake, and is a proper party to bring suit in equity to reform the deed.

Appeal from circuit court, Greene county; W. D. Hubbard, Judge.

Suit by J. C. Dodson against R. S. Lomax to reform a deed. From a decree for plaintiff, defendant appeals. Affirmed.

Wm. O. Mead and H. C. Young, for appellant. H. E. Howell, for respondent.

GANTT, P. J.

This is a suit in equity, commenced by the plaintiff, who is sheriff of Greene county, to correct a mistake made by him in a deed to defendant. F. C. Foster and A. M. Foster borrowed certain school money from Greene county, and executed an ordinary school mortgage to the county, conveying lots 13 and 14 in Foster's second addition to the city of Springfield. Having made default, the county court duly made an order of sale. The plaintiff, as sheriff, received the order, gave the requisite notice, and, in full conformity therewith, sold lot 14 only, as that lot brought a sum sufficient to pay the whole debt, interest and costs. At this sale defendant, Lomax, was purchaser of lot 14. By mistake the scrivener who drew the deed from plaintiff to defendant wrongfully inserted lot 13 also, in the deed, and it was so recorded. Having discovered the mistake, plaintiff requested and demanded of defendant a reconveyance of lot 13 to the mortgagors, in order to correct the deed. This defendant refused, and plaintiff began this action, alleging all the foregoing facts. The defendant demurred to the petition, and assigned these three grounds: (1) That the plaintiff's petition herein shows upon its face that he is not the real party in interest in this cause, and has no capacity to sue; (2) that plaintiff's amended petition does not state facts sufficient to constitute a cause of action; (3) that plaintiff, in his said amended petition, pleads evidence, instead of facts. The trial court overruled the demurrer, and defendant refused to plead further. The court heard the evidence, found the facts as alleged, and rendered a decree reforming the sheriff's deed by striking out lot 13.

1. The first point in the demurrer denies the right of the sheriff to have a court of equity correct a mistake in his deed of conveyance. We do not think there is any merit in this position. By the very terms of the mortgage, the sheriff was made the trustee of an express trust. He is a party to the deed of trust or school mortgage. For the negligence, if any, in making this mistake, whereby the grantor in the mortgage might suffer the loss of the title to lot 13, he would become liable in damages, on his bond, or for negligence. From all these considerations, we think he was most clearly a proper party plaintif...